Questions About Patent Eligibility Of Technical Simulations Referred To EPO Enlarged Board Of Appeal

EPO Technical Board of Appeal 3.5.07 has, in case T 0489/14 (Pedestrian simulation/CONNOR), referred questions to the Enlarged Board of appeal concerning what is to be considered technical in the fields of design and simulation. The cases of Designing optical systems/Philips and Circuit Simulation I/Infineon have long been cited as precedent that the design or simulation of a technical system is itself technical and eligible for patent protection. However, some more recent cases have put limits on that proposition, suggesting that the technical system must be defined with sufficient specificity and that the purpose of the simulation might also be relevant.

In this case, the Board was minded to disagree with the Infineon case and so referred the following questions to the Enlarged Board:

In the assessment of inventive step, can the computer-implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation's implementation on a computer, if the computer-implemented simulation is claimed as such? If the answer to the first question is yes, what are the relevant criteria for assessing whether a computer-implemented simulation claimed as such solves a technical problem? In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process? What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design? The Enlarged Board's answers to these questions could therefore potentially overturn some fairly well-established case law.

A referral to the Enlarged Board may be made by a Technical or Legal Board of Appeal if that Board considers it necessary "to ensure uniform application of the law, or if a point of law of fundamental importance arises". Such cases are quite rare and there has not been a referral in the software field since 2010. The Enlarged Board may seek amicus curiae briefs and is likely to give an answer in 18 months to two years.

The invention at issue in Connor concerned the simulation of the movements of pedestrians through buildings, with the ultimate aim of improving the design of those buildings. The applicant argued that the invention produced a technical effect of "a more accurate simulation of crowd movement" which under Infineon is an adequately defined...